COMMONWEALTH OF MASSACHUSETTS

Bureau of Special Education Appeals

BSEA #07-0623

Ruling on the Parent’s Motion to Join the Department of Mental Health and on the School’s Motion to Join the Department of Social Services

This matter comes before the Bureau on two joinder motions which must be decided before a hearing on the Parent’s request for a residential placement can take place: The Motion of the Whitman-Hanson Regional School District to Join the Massachusetts Department of Social Services (hereinafter “DSS”), and the Parent’s Motion to Join the Massachusetts Department of Mental Health (hereinafter “DMH”). Both state agencies oppose joinder. All interested entities submitted written briefs and participated in oral arguments held on September 12, 2006, in Malden, MA. The operative facts are not in dispute and may be briefly summarized:

Factual Background

1. Elfred is a fourteen year old with cognitive, language, social/emotional and psychiatric disabilities. He has a significant history of trauma, including both sexual abuse and sexual offending. Elfred has received special education services through the Whitman-Hanson Regional Schools since 2001.

2. Elfred has received continuing care services from DMH since 2003. These services have included a trauma assessment, a neuropsychological evaluation, a sexual offender risk assessment, an educational evaluation, and limited diagnostic interventions in both outpatient and inpatient settings. Currently DMH is funding Elfred’s inpatient diagnostic placement at the Brandon Center in Natick, MA. Elfred remains eligible for DMH continuing care services. DMH asserts that it intends to participate voluntarily in the special education hearing process through information-sharing and cooperative service planning.

3. Elfred’s family sought voluntary services from DSS in 2003 due to Elfred’s problematic history and behaviors. DSS briefly provided assessment and support services to the family and closed the family’s case file later in 2003. Currently there is no custodial or care relationship between DSS and Elfred. DSS does not provide any services to Elfred or his family. The family has not re-applied for voluntary services.

4. In December 2005, Elfred demonstrated inappropriate and problematic behaviors at home and in school which resulted in removal from school and placement at Pembroke Hospital. Elfred remained at Pembroke Hospital until March 28, 2006, when he was enrolled by DMH at the Brandon Center. The Brandon Center is a secure facility which provides twenty-four hour diagnostic and assessment services. It is not an educational or therapeutic program. The Brandon Center has determined that Elfred is ready to transition to a secure, residential, educational and treatment program. Elfred will continue placement at the Brandon Center pending the outcome of this hearing.

5. The Whitman-Hanson Team met on June 12, and July 12, 2006. The Team developed an IEP proposing that Elfred receive special educational services in a therapeutic day program. The Parent partially rejected the proposed IEP. She accepted the day portion of the IEP, but rejected the Team’s failure to include residential educational services as part of the IEP. The Parent seeks an IEP which provides appropriate and comprehensive special education and related services on a residential basis.

6. No therapeutic day or residential programs have been identified by either Whitman-Hanson or the Parent as both appropriate and available for Elfred. Other than the Brandon Assessment Center, there are no programs or services solely operated or controlled by DMH to which the Parent has applied or seeks admission. None of the therapeutic residential education programs suggested by the parent, and believed by the School to be potentially or partially appropriate for Elfred: The Baird Center; Granite Academy; South Shore Educational Collaborative; and Pilgrim Academy are solely DMH funded.

Discussion

It is by now well established that the Bureau of Special Education Appeals has the authority to join a human service agency such as DMH to a special education appeal when the agency’s participation is necessary to assure the provision of a free, appropriate public education to the student. M. G. L. c. 71B § 3 as amended by chapter 159 § 162 of the Acts of 2000 (“section 162”); 603 CMR 28.08 (3) and BSEA Hearing Rule 1F. Among the factors to be considered when determining whether joinder is appropriate and necessary in any particular case are: the risk of prejudice to the present parties in the absence of the proposed party; the range of alternatives for fashioning relief; the adequacy of a judgment entered in the proposed party’s absence; and the existence of an alternative forum to resolve issues among the interested entitities. In Re : Student and Needham and Newton Public Schools , 6 MSER 308 (2000) In Re: Plymouth P. S. , 12 MSER 33(2006) A decision on a motion to join one or more state human service agencies or private special education providers to a special education appeals hearing is highly fact specific and time dependent. After careful consideration of the facts presented in this matter I conclude that neither DSS nor DMH need be joined at this juncture in order to afford Elfred complete relief on his special education claim.

The language of the Parent’s initial request for hearing and Motion to Join DMH frames a classic special education dispute:

“At this time there is a dispute between the parties regarding what setting or placement is appropriate for [Elfred]. The school district believes that a day treatment program is adequate to meet [Alfred’s] needs, while Parent strongly believes that a residential placement is necessary.”

Parent’s Motion to Join DMH, Administrative Record.

The Parent here is actively seeking public funding for a residential educational placement for Elfred similar to that sought by the students in David D. v. Dartmouth School Committee , 775 F. 2d 411 (1985) and Mohawk Trail Regional School District v. Shaun D. , 35 F. Supp. 2d 34 (1999). She asserts that Elfred’s emotional, behavioral and learning needs are so intertwined as to require comprehensive, twenty four hour educational programming in order for him to make reasonable progress in all areas of special need commensurate with his potential. The Parent has not identified any service or placement uniquely under the control of DMH which is a necessary component of or predicate to an appropriate residential special education program. Nor has Whitman-Hanson claimed that DMH services are necessary to support the student in the less restrictive day placement it has proposed for Elfred.

Whether a residential educational program is the least restrictive environment in which Elfred’s special education needs can be met is a question that may be answered by looking closely at Elfred’s current educational functioning, evaluations, and recommendations and matching them to the services and environment offered by the School. DMH has highly relevant information to contribute to service planning for Elfred, and has indicated its willingness to share that information both within and apart from the hearing process. Joinder would be appropriate therefore on a showing that information, expertise, resources or programs uniquely under the control of DMH and relevant to the disposition of the FAPE issue before the Bureau, were unavailable without DMH participation or were being withheld from the parties by DMH. Since it appears that complete relief on the Parent’s claim for a residential special education placement can be ordered without reference to an existing or potential DMH service, involuntary joinder under BSEA Rule 1F is not warranted at this time. Should circumstances change the parties may renew the motion to join DMH.

In contrast to the involvement of DMH in Elfred’s life, DSS has no current connection to Elfred or his family and therefore has no relevant information to share with the parties, or programs or services to offer to Elred. Absent a custodial or care connection to Elfred, there is an insufficient legal nexus to support joinder of DSS pursuant to M. G. L. c. 71B.

Order

For the reasons discussed above:

1. The Motion of the Parent to Join the Department of Mental Health is DENIED.

2. The Motion of the School to Join the Department of Social Services is DENIED.

3. A hearing will take place on October 4 and 5, 2006, beginning at 10:00 a. m. at 11 Dartmouth St, Malden, MA.

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